English, Ch. J.
At the April term, 1883, of the Circuit Court of Perry county, Andy Miller was arraign*d on a recorded copy of an indictment, charging in apt terms that he muydered Joseph Miller, on the 17th of September, 1881, by shooting him with a shot gun; he pleaded not guilty, was tried by a jury, found guilty of murder in the second degree, and his punishment fixed at imprisonment in the penitentiary for twenty-one years. He filed a motion for a new trial, which was overruled, and he took a bill of exceptions. He was sentenced in accordance with the verdict, and prayed an appeal, which was allowed by one of the Judges oí this Court. The motion for a new trial was upon the ground that the verdict was contrary to the evidence, etc.; that the Court erred in refusing instructions moved for the prisoner, andin its general charge to the jury.
The case-was tried before a special Judge, the regular Judge being disqualified to sit in the case.
The transcript on which the appeal was allowed contained no record entry showing the empanneling of a grand jury at the October term, 1881, when the indictment purports to have been found, and no record entry showing the return of the indictment into Court by the grand jury.
A certiorari was awarded to the clerk of the court below for the purpose of supplying the omitted entries, upon which he returned ‘-that the record of the-Perry Circuit Court for the October term, 1881, at which term the grand jury was empanneled, and the indictment against Andy Miller was found and returned into Court, was destroyed by tire on the 19th day of December, 1881, by the burning of the Courthouse.”
Upon this return the case was submitted.
The attorney for appellant, in his brief, has not insisted that there were any errors in the rulings of the trial Judge, or that there was a want of evidence to sustain the verdict, but submits that the judgment should be reversed under decisions of this Court cited, because of the destroyed record entries, which have, not been restored; and he further states that the present Judge of the Perry Circuit Court was the prosecuting attorney when the indictment was found, that the then clerk has removed from the county, and the special Judge who tried the caséis functus officio, and submits that the burned record can therefore never be restored, and that appellant should be discharged.
The following is the indictment and its endorsements as they appear in the transcript before us:
“State of Arkansas, vs. Andy Miller.
Perry Circuit Court, October term, 1881.
The grand jury of Perry county, in the name and by the authority of the State of Arkansas, accuse Andy Miller of the crime of murder in the first degree, committed as follows: The said Andy Miller, on the 17th day of September, 1881, in the county-and State aforesaid, did feloniously, wilfully, premeditatedly and with malice aforethought, with a shot gun loaded with gunpowder and leaden bul'ets, kill and murder one Joseph Miller, by shooting him, the said Joseph Miller, with said gun, against the peace and dignity of the State of Arkansas.
(Signed) J. P. Henderson,
Pros. Att'y., 7th Judicial Circuit, pro tem,.”
“Endorsed,
State of Arkansas v. Andy Miller. Indictment. A true bill.
(Signed) J. S. Odom, Foreman.”
“Witnesses-RobertMann,Elizabeth Mann, J. W. Bly, Solomon Sack, W. J. G. Young, Sarah Miller.”
“Piled in open Court this 15th day of October, 1881.
A. L. McGahey, Clerk.”
“Issue bench warrant. No bail allowed.
J. M. Smith, Judge.
“State of Arkansas, County of Perry.
I hereby certify the foregoing indictment was filed in my office on the 1st day of April, 1882, and that the same is now duly recorded in record book A, page 6 for the record of indictments.
A. L. McGahy, Clerk and ex officio Recorder.”
It was upon this record of the indictment and its endorsements that appellant was arraigned, and pleaded not guilty.
It was proven on the trial that the courthouse had been burned, but no question was raised about the burned record, and no proof offered as to its contents.'
This Court has repeatedly decided that the entry showing the empanneling of the grand jury, is part of the record in every criminal case prosecuted upon an indictment found by such grand jury, and that on appeal or writ of error,, such entry should be copied into the transcript, as well as the record entry showing that the indictment was returned into Court by the grand jury. And when such entries do not appear in the transcript, it has been the practice of the Court, in favor of life or liberty, to award a certiorari to supply the omission, before affirming a judgment of conviction. And if it appeared from the return upon the certiorari that there was no record entry of the impanneling of the grand jury, or of the return of the indictment into court by the grand jury, the practice has been to reverse the judgment of conviction. Green v. State, 19 Ark., 178.
Where the record shows that the grand jury was impanneled, and the indictment returned by them into Court, irregularities in summoning, impanneling, or questions as to the qualifications of the jurors, have been treated as matters in abatement, and waived by the plea of not guilty, which is a plea in bar. Shropshire v. State, 12 Ark., 190; Fenalty v. State, Ib., 630; Stewart v. State, 13 Ib., 744; Straughn v. State, 16 Ib., 41; Brown v. State, 13 Ib., 96.
This is the first case in which it has appeared by return upon a writ of certiorari to this Court, that the record entries showing the impanneling of the grand jury, and the return by them of the indictment into Court, had been destroyed by the burning of a courthouse pending the prost cution, and therefore the omissions in the transcript could not be supplied.
We are not disposed to depart from the long established rules of practice of this Court on the one hand, nor upon the other to permit, if it may be safely avoided, the administration of public justice to be defeated by the burning of courthouses, and the destruction by fire or otherwise, of records.
The purpose of the Act of March 19th, 1881, was to prevent such evil. It provides: “ That hereafter,it shall be the duty of the several clerks of the Circuit Courts of this State, whenever an arrest shall have been made of any person, against whom an indictment has been found by the grand jury, properly returned, to record such indictment, with the entries thereon, in a book to be kept by him for that purpose. Sec. 1.
“ That in all cases where an indictment may he lost or destroyed, or where the same cannot be found, a copy of the record thereof, as provided in the first section of this Act, duly certified by such clerk under his hand and seal of said Court, shall be taken and used for all purposes in any of the courts of this State, the same as the original indictment. Sec. 2. Acts of 1881, p. 106.
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English, Ch. J.
At the April term, 1883, of the Circuit Court of Perry county, Andy Miller was arraign*d on a recorded copy of an indictment, charging in apt terms that he muydered Joseph Miller, on the 17th of September, 1881, by shooting him with a shot gun; he pleaded not guilty, was tried by a jury, found guilty of murder in the second degree, and his punishment fixed at imprisonment in the penitentiary for twenty-one years. He filed a motion for a new trial, which was overruled, and he took a bill of exceptions. He was sentenced in accordance with the verdict, and prayed an appeal, which was allowed by one of the Judges oí this Court. The motion for a new trial was upon the ground that the verdict was contrary to the evidence, etc.; that the Court erred in refusing instructions moved for the prisoner, andin its general charge to the jury.
The case-was tried before a special Judge, the regular Judge being disqualified to sit in the case.
The transcript on which the appeal was allowed contained no record entry showing the empanneling of a grand jury at the October term, 1881, when the indictment purports to have been found, and no record entry showing the return of the indictment into Court by the grand jury.
A certiorari was awarded to the clerk of the court below for the purpose of supplying the omitted entries, upon which he returned ‘-that the record of the-Perry Circuit Court for the October term, 1881, at which term the grand jury was empanneled, and the indictment against Andy Miller was found and returned into Court, was destroyed by tire on the 19th day of December, 1881, by the burning of the Courthouse.”
Upon this return the case was submitted.
The attorney for appellant, in his brief, has not insisted that there were any errors in the rulings of the trial Judge, or that there was a want of evidence to sustain the verdict, but submits that the judgment should be reversed under decisions of this Court cited, because of the destroyed record entries, which have, not been restored; and he further states that the present Judge of the Perry Circuit Court was the prosecuting attorney when the indictment was found, that the then clerk has removed from the county, and the special Judge who tried the caséis functus officio, and submits that the burned record can therefore never be restored, and that appellant should be discharged.
The following is the indictment and its endorsements as they appear in the transcript before us:
“State of Arkansas, vs. Andy Miller.
Perry Circuit Court, October term, 1881.
The grand jury of Perry county, in the name and by the authority of the State of Arkansas, accuse Andy Miller of the crime of murder in the first degree, committed as follows: The said Andy Miller, on the 17th day of September, 1881, in the county-and State aforesaid, did feloniously, wilfully, premeditatedly and with malice aforethought, with a shot gun loaded with gunpowder and leaden bul'ets, kill and murder one Joseph Miller, by shooting him, the said Joseph Miller, with said gun, against the peace and dignity of the State of Arkansas.
(Signed) J. P. Henderson,
Pros. Att'y., 7th Judicial Circuit, pro tem,.”
“Endorsed,
State of Arkansas v. Andy Miller. Indictment. A true bill.
(Signed) J. S. Odom, Foreman.”
“Witnesses-RobertMann,Elizabeth Mann, J. W. Bly, Solomon Sack, W. J. G. Young, Sarah Miller.”
“Piled in open Court this 15th day of October, 1881.
A. L. McGahey, Clerk.”
“Issue bench warrant. No bail allowed.
J. M. Smith, Judge.
“State of Arkansas, County of Perry.
I hereby certify the foregoing indictment was filed in my office on the 1st day of April, 1882, and that the same is now duly recorded in record book A, page 6 for the record of indictments.
A. L. McGahy, Clerk and ex officio Recorder.”
It was upon this record of the indictment and its endorsements that appellant was arraigned, and pleaded not guilty.
It was proven on the trial that the courthouse had been burned, but no question was raised about the burned record, and no proof offered as to its contents.'
This Court has repeatedly decided that the entry showing the empanneling of the grand jury, is part of the record in every criminal case prosecuted upon an indictment found by such grand jury, and that on appeal or writ of error,, such entry should be copied into the transcript, as well as the record entry showing that the indictment was returned into Court by the grand jury. And when such entries do not appear in the transcript, it has been the practice of the Court, in favor of life or liberty, to award a certiorari to supply the omission, before affirming a judgment of conviction. And if it appeared from the return upon the certiorari that there was no record entry of the impanneling of the grand jury, or of the return of the indictment into court by the grand jury, the practice has been to reverse the judgment of conviction. Green v. State, 19 Ark., 178.
Where the record shows that the grand jury was impanneled, and the indictment returned by them into Court, irregularities in summoning, impanneling, or questions as to the qualifications of the jurors, have been treated as matters in abatement, and waived by the plea of not guilty, which is a plea in bar. Shropshire v. State, 12 Ark., 190; Fenalty v. State, Ib., 630; Stewart v. State, 13 Ib., 744; Straughn v. State, 16 Ib., 41; Brown v. State, 13 Ib., 96.
This is the first case in which it has appeared by return upon a writ of certiorari to this Court, that the record entries showing the impanneling of the grand jury, and the return by them of the indictment into Court, had been destroyed by the burning of a courthouse pending the prost cution, and therefore the omissions in the transcript could not be supplied.
We are not disposed to depart from the long established rules of practice of this Court on the one hand, nor upon the other to permit, if it may be safely avoided, the administration of public justice to be defeated by the burning of courthouses, and the destruction by fire or otherwise, of records.
The purpose of the Act of March 19th, 1881, was to prevent such evil. It provides: “ That hereafter,it shall be the duty of the several clerks of the Circuit Courts of this State, whenever an arrest shall have been made of any person, against whom an indictment has been found by the grand jury, properly returned, to record such indictment, with the entries thereon, in a book to be kept by him for that purpose. Sec. 1.
“ That in all cases where an indictment may he lost or destroyed, or where the same cannot be found, a copy of the record thereof, as provided in the first section of this Act, duly certified by such clerk under his hand and seal of said Court, shall be taken and used for all purposes in any of the courts of this State, the same as the original indictment. Sec. 2. Acts of 1881, p. 106.
It was under this Act that the indictment in this case was recorded, and under it appellant was arraigned upon the records d copy, and pleaded not guilty.
It was proven upon the trial that he had been arrested under a warrant issued upon the indictment, escaped jail and had been re-arrested.
The clerk, under the Act, was only authorized to record indictments found by a grand jury, and properly returned into Court. There is a legal presumption arising from the fact that he recorded the indictment in question, that it had been found by a grand jury, and returned into Court. The law presumes that all officers discharge their official duties until the contrary is shown.
Moreover, the indictment purports on its face to have been found by a grand jury. It is signed by the prosecuting attorney. It is endorsed a true bill by a person signing his name as foreman. Also endorsed by the clerk,filed in open Court, and the then presiding Circuit Judge endorsed an order on it that a bench warrant issue, and no bail be allowed.
With all these evidences of genuineness, there is not the s’igh'est probability that the indictment is spurious, or that it was not in fact found and returned into Court by a grand jury.
On the merits of the case we find no error for which the judgment should be reversed. There was evidence to sustain the verdict. The Court refused some instructions asked for appellant, as formulated, but the substance of them was given in the general charge of the Court, which wa-; full and fair. The corpus delicti was directly proven, and the general charge of the Court left it to the jury to decide upon all the facts and circumstances in evidence, whether appellant shot the deceased, as alleged, and if so, whether it was murder in the first or second degree, voluntary manslaughter or self-defence, which were correctly defined by the Court. The jury found appellant guilty of murder in the second degree; the Court refused him a new trial, and we find in the transcript nothing to warrant us to disturb the verdict without an infringement upon the province of the jury to weigh and pass upon the sufficiency of the evidence.
The power of the Court below to cause the burned record to be restored by proper proceedings, is not doubted.
Had appellant pleaded in abatement that the indictment had not been been found and returned into Court by the grand jury, on the trial of an issue to such plea, it would have been necessary for the State to produce the original or restored record entries, showing such facts, or prove the destruction of the record entries, that they had not been restored, and resort to secondary evidence of their contents. But no such plea was interposed, but a plea putting in issue the facts alleged in the indictment.
True, as matter of caution in favor of life or liberty, this Court has followed the practice of not affirming a judgment of conviction on plea of not guilty, without the presence of the transcript of entries showing that the indictment was found and returned into Court by a grand jury, as stated above. But we have endeavored to show above, the reasons why we do not deem it necessary to apply the practice in this case, as we would if there was the slightest ground on which to found a doubt that the indictment was in fact found and returned into Court by a grand jury.
Afflimed.
DISSENTING OPINION BY